Voice of the Free Press: Police must prove case for withholding files

Sep. 14, 2011

The Vermont Attorney General's Office has come out as a full-blown opponent of government transparency, advocating for a system that would leave the release of any information in a police investigative file at the sole discretion of law enforcement.

In a hearing Tuesday before the Vermont Supreme Court, Assistant Attorney General John Treadwell went further, arguing that the public should presume to have no access to any part of an investigative file unless police choose to release the information.

Such a move would, in effect, place the police above Vermont's public records law and dangerously erode citizens' ability to exercise oversight of law enforcement activities.

The case before the Supreme Court is Chittenden County State's Attorney T.J. Donovan's request to seal files related to search warrants executed in the police's search for the Essex couple, William and Lorraine Currier, last seen on June 8. This started with a simple public records request made by the Burlington Free Press and escalated into a Supreme Court case.

Such search warrant-related documents are considered public documents once executed and the results filed with the court. In court on Tuesday, Treadwell argued that way of thinking is misguided.

"When the state has filed a motion to seal in an active criminal investigation where no one has been arrested, the presumption should be reversed," Treadwell said.

The arguments for disclosure have been laid out by Superior Court Judges Linda Levitt and James Crucitti, as well as Supreme Court Associate Justice John Dooley in previous rulings.

Levitt wrote in a June 22 ruling. "The state has made only general assertions that the police investigation will be jeopardized if information is released."

In a July 18 decision, the Supreme Court temporarily prevented the release of the search warrant documents until a full hearing on the issue. In a dissent, joined by Associate Justice Denise Johnson, Justice Dooley wrote:

"Apparently, some of the details were simply copied from application to application even though they may not be necessary for the specific search warrant request in issue. Further, the State has acknowledged that it could redact information from the affidavit and warrant requests so as to disclose some information that would not threaten the investigation."

In short, these justices are saying the state must make a case for withholding any specific records, and has failed to use the tools available to preserve the integrity of sensitive information. Before allowing any public documents to be sealed, the government must be required to justify how withholding each piece of information serves the public interest.

In making its case against the public's presumed right to access, the Attorney General's Office is asking the state's highest court to rewrite the law, depriving Vermonters of an essential tool in keeping police accountable.

Our courts should be the last institution to become an instrument for state secrecy.